Privilege Non-Waiver Sticks; GC Avoids Grand Jury

Most federal courts reject a “selective-waiver doctrine,” which means that waiver to one is waiver to all. But a recent decision from the Fourth Circuit Court of Appeals precluded the DOJ from calling the general counsel of an unidentified corporation (the company and the GC’s identity are under seal) from calling the GC to testify before a grand jury, even though the information at issue had been previously disclosed to U.S. attorneys years before. Todd Presnell looks at the nuances of this decision in his blog, “Presnell on Privileges.” In deciding whether or not the agreement precluded the GC’s testimony, he explains, “the court did not apply privilege-waiver tenets (such as courts interpret the privilege narrowly), but rather bread-and-butter contract-interpretation principles.” The court’s rationale was based in part on public policy. A precedent that failed to legitimize a non-waiver agreement in the course of a government investigation would make companies in the future less likely to cooperate.